Category Archives: Law

Last Wednesday, the Supreme Court heard oral arguments in King v. Burwell, the GOP’s latest legal strike against the Affordable Care Act (ACA), known colloquially as “Obamacare.” The justices appeared to split largely along familiar ideological lines (with Chief Justice John Roberts remaining mostly inscrutable), but one exchange — no pun intended — stood out to me.

I’ve excerpted the relevant portions below:

Something about Justice Scalia’s comments here immediately struck me as bizarre, but I couldn’t figure out exactly why the first time I read it.

I think now I do. The thing is, we’ve come to expect a scarily high level of partisanship on the Court, echoing our broader political divide in the legislature and, indeed, in the nation at large. So it’s no surprise to see Scalia, Alito, et al. bringing out the knives against the solicitor general, Donald Verrilli, Jr. (just as it’s no surprise to see Kagan, Sotomayor, et al. do much the same to Michael Carvin on the challengers’ side).

But what’s interesting here is the specific reasoning Scalia employs in his favor. He had at least two options for how to defend the challengers’ reading of the law. The first, and more obvious, tactic would have been to simply characterize the phrase “Exchanges established by the State” as unambiguous under a strict textualist reading of the ACA, and leave it at that. In essence, he could have just argued that the possibly disastrous effects of eliminating healthcare subsidies in numerous states is simply not a judicial matter and that the law must be interpreted as written, regardless of the outcome. Moreover, this would have been fully consistent with Scalia’s stated originalist approach to jurisprudence.

But he didn’t stop there. Instead, he stated or implied multiple times (in the excerpts displayed above) that, if the consequences were as terrible as Verrilli believed, Congress would step in to fix the problem — in this case, the loss of health insurance to citizens who would have otherwise been covered by Obamacare subsidies.

This is a strikingly odd perspective. As anyone with even a passing familiarity with American politics knows, the chance of a Republican-led Congress — in both houses — enacting emergency legislation to save ACA subsidies is practically zero. Scalia, as someone intimately aware of the American political process, knows this better than most. And so did the audience attending the oral argument, which burst into laughter when Verrilli countered: “Well, this Congress, Your Honor…”

In other words, in a brazen attempt to persuade his fellow justices of the merits of the challengers’ arguments, Scalia made a deliberately disingenuous prediction about the likely outcome of ruling in their favor. Indeed, the idea that Congress would fix Obamacare is so obviously comical that it underscores just how desperate Scalia is to dismantle it: he would gladly suffer the public indignity of making an obviously absurd political prognosis for the mere opportunity to shape his undecided colleagues’ eventual ruling.

This may or may not tell us something about the Court’s likely decision — perhaps it means Scalia is privy to wavering on the part of Kennedy or Roberts, and perhaps not — but it tells us much about the lengths to which Justice Scalia will go to achieve an ideological objective.

Last Wednesday I posted an intro note to SCOTUS Search: the free, searchable online database of United States Supreme Court oral argument transcripts that Victoria Kwan and I just launched in beta. The post recounted the development of the idea behind SCOTUS Search, as well as some plans for the project going forward.

Now that the site has seen some traffic (which is extremely exciting!), I figured it would be worthwhile to put together a short guide with some tips on how to best use the site, some caution about its exhaustiveness, and various other marginalia. This post is likely to be updated over time as more things come to mind.

Before I say anything else, though: thank you so much for checking it out! This is a project Victoria and I have been working on, on and off, for the better part of a year now, so it’s really gratifying to see people making use of the site and tweeting out their favorite search results and obscure judicial references. I can’t wait to see what legal writers, academics, journalists, and Court-watchers do with this data going forward.

So, in no particular order:

The first thing I must emphasize again, as I did in the intro post (and as is displayed prominently on the SCOTUS Search home page), is that SCOTUS Search is still in beta. What does this mean in practice? A lot of things, actually:

The database of oral argument transcripts is neither exhaustive nor 100% error-free. I don’t mean this to be alarming in any way, but just as a fair warning. As Oyez notes, the Supreme Court only “installed an audio recording system in 1955.” (You can see a visual representation of this lack of transcripts prior to 1955 in the graph displayed on the SCOTUS Search home page.) While Oyez has compiled a truly astounding library of transcripts, there are still many blank cases from 1955 onward that we have therefore been unable to include in SCOTUS Search — as our only sources for transcripts so far are Oyez and the Supreme Court itself. Moreover, as the above link makes clear, the official recordings have endured various hiccups over the subsequent decades that had an impact on transcribers’ ability to ensure perfect quality at times.

For example, in many cases, justices and attorneys are not identified by name in the transcripts and are referred to, instead, as “Unidentified Justice” or “Unknown Speaker.” In other cases, the same speaker is identified differently across cases: “Justice Scalia” and “Justice Antonin Scalia,” for example. Elsewhere, we found examples of misidentification, as when John Roberts was referred to in one transcript as “Chief Justice John Roberts” even though the case was argued prior to his appointment in OT 2005 and Roberts was actually appearing as an attorney arguing before the Supreme Court at the time. Finally, there are also straight-up typos, as pointed out here and here, for example. (Speaking of which…please let us know whenever you find any errors!)

We have attempted to correct as many of these ambiguities and errors as possible. But given the scale of the data, we expect to find hundreds or even thousands of similar examples in various other cases. In the near future, I hope to add an “error correction” form so that registered users can submit changes to transcripts, which we can then review and approve to ensure high accuracy.

A lot of you who visited via a link in the Twitter mobile app probably already noticed this, but…SCOTUS Search does not currently play nice with mobile. (Not sure about tablets, as neither Victoria nor I own an iPad and haven’t tested on one yet.) I absolutely plan to add mobile functionality, but I don’t have a specific ETA just yet.

There are a lot of “search type” options — eight, to be precise. All of them are case-insensitive: your capitalization, or lack thereof, doesn’t matter at all. But they are super sensitive to spelling, typos, spaces, and so on. E.g. A search for “Superman” ≠ “Super man”. This is another weakness I plan on addressing in the future. Anyway, for most people’s purposes, the three most useful search types will be:

Oral argument: Exact phrase. This search type works exactly as advertised: for example, typing “in my underwear” (without quotes!) will bring you to the sole result for a very confusing, and confused, rumination on bullying and the frailty of human memory by Justice Stephen Breyer. As of today (2/18/2015), using quotation marks with this search type will only return results that actually include quotation marks in the transcript text. Assuming that’s not what you’re looking for, don’t use quotation marks when selecting the “Oral argument: Exact phrase” search type.

Oral argument: All search words. This is very similar to the above search type, except the words in the phrase don’t have to be adjacent to each other in the transcript text. If you type, “baseball hockey,” for example, the results will return all statements containing both words, whether or not they were said immediately consecutively.

Oral argument: Any search words. This will return any statement containing any of the words in the search box.

Sign up as a user! You don’t have to do it to use SCOTUS Search, but here are some of the benefits:

It’s free.

You get to write notes on individual cases and statements, as well as favoriting them (for bookmarking purposes). You can even decide whether to make your notes private (viewable only to yourself, which is the default) or public (which can be viewed by any other registered users), and you can look at other users’ public notes as well.

You can export the case titles and metadata of search results (to CSV or XLS format), instead of simply viewing them on the site.

You can save all your searches and set your default search type.

You can receive email alerts any time a case transcript is added or updated (and, as an added bonus, the emails let you know when SCOTUS Map — our sister project — has been updated too).

You get to set your own time zone preferences! Which is, I guess, pretty cool.

A little over six months ago, I wrote a short blog post called “Introducing SCOTUS Map.” In the time since, the project has really grown up, entirely due to Victoria‘s relentless research and updates. SCOTUS Map now displays more than 150 events spanning from last summer to this upcoming one, along with links to registration information, transcripts, audio, and video (where available).

Of late, we’ve added new features as well: there are seven default views to choose from (including “Summer 2014,” “2014 Term,” “Summer 2015,” “Future Events,” and so on), the sidebar can be hidden to enlarge the map, and — as of this week — visitors can now subscribe to daily or weekly email alerts in order to receive updates any time new events are added. (If no new events come through that day or week, don’t worry: we won’t send you an email.)

But believe it or not, SCOTUS Map wasn’t the first Supreme Court project Victoria and I had started. Back in April of last year, three months prior to SCOTUS Map’s launch, we took the first steps towards building the first free, searchable online database of Supreme Court oral argument transcripts.

Currently there are two principal repositories of freely available Supreme Court oral argument transcripts. The first is the recently redesigned Supreme Court web site, which hosts transcripts dating back to the 2000 term. The second, and far more exhaustive, resource is Oyez.org, which holds oral argument transcripts dating back to the 1950s.

The idea for SCOTUS Search had first come up in this context early last year: Victoria was writing pieces on the Supreme Court for my blog and needed to delve into the oral argument proceedings in order to conduct research. While she could usually locate a specific transcript on either Oyez.org or SupremeCourt.gov, each one would have to be searched individually. So if, for example, she was looking for all mentions of “gay marriage” before the Court, she’d have to open every single case that had ever been argued over the past decade or two.

This was clearly an impossible task. Making matters worse, the Supreme Court’s hosted transcripts are stored in PDF format, which — while searchable on an individual basis — are not conducive to automated bulk searching across documents. Oyez boasted a much larger library of transcripts in plain-text, which was far superior from a technical standpoint. However, the site had no full-text transcript search engine, meaning that searching for words or phrases would still require manually opening hundreds or thousands of cases. Additionally, some transcripts were missing and others appeared to cut off partway through.

Starting in 2013, Victoria mentioned to me on numerous occasions her frustrations with the arduous research process. And thus an idea was eventually born last year: if we could somehow consolidate Supreme Court oral argument transcripts across sources and standardize them into a database, we could make the full texts searchable online for free, for the very first time.

Over nine months later, the result of this project is SCOTUSSearch.com. Containing over 1.4 million individual statements spoken in nearly 6,700 Supreme Court oral arguments from the 1950s through the present, the site allows users to search the full text of oral argument transcripts using search options that include filters for speaker and Court term. SCOTUS Search is still in beta, so there are doubtless errors and bugs that we’ll discover over time. In fact, we hope that new visitors to the site will help us out in this regard: if something isn’t working or doesn’t make sense, please let us know so we can fix it.

The recommended way to start is to sign up for a free login. This isn’t required in order to search through transcripts, but there are a lot of features which are only available to registered users: adding notes to cases and individual statements (and sharing them with other users, if you prefer), saving your search history, and marking cases and statements as favorites, for example.

We’re also planning on adding even more substantial tools for registered users only, including the ability to submit transcript revisions and error/typo fixes where applicable. My long-term wish list includes expanding SCOTUS Search beyond the Supreme Court, to incorporate oral arguments from the federal appeals courts (and perhaps international courts). Imagine being able to trace the thought process and rhetoric of Supreme Court justices back to their days on lower appeals courts, or doing the same with attorneys who have argued before multiple courts. In short, the launch of SCOTUS Search is just the beginning of the road, not the end. There’s plenty more to come.

Finally, it cannot be stated clearly enough what a debt this project owes both to the Supreme Court, for hosting over a decade of transcripts, and especially to Oyez, whose tireless transcription and metadata compilation over the years has proved invaluable to many a researcher and journalist, and whose extensive library of transcripts made SCOTUS Search possible.

Victoria Kwan and I have been working on a few projects for the past few months. One of our more recent efforts is SCOTUS Map. (SCOTUS stands for “Supreme Court of the United States.”)

This map, based entirely on Victoria’s research (and my rudimentary knowledge of HTML, CSS, and JavaScript), displays where the current and retired Supreme Court justices are speaking throughout the summer and into the fall.

The map includes details on each event itself, the venue, registration information, and (eventually) post-event recaps. The right-hand sidebar lists all events, both past and future, in chronological order. SCOTUS Map will be continually updated as new events are announced, and we plan on creating new iterations of it for each successive Court term (and recess).

During the question-and-answer portion of Justice Stephen Breyer’s international law lecture at the Brookings Institution yesterday, an audience member from the Coalition for Court Transparency asked the justice about the possibility of live streaming audio from Supreme Court oral arguments. Justice Breyer gave a nearly six-minute reply which reiterated some of the same arguments he has made against live video in the past, but the answer did contain an interesting new tidbit at the end in which he mentions recent audio “experiments” from the D.C. Circuit.

Michelle Olsen of Appellate Daily published a transcription of the last part of this answer yesterday evening. The following is my transcription of the full question and answer, which I have slightly edited for clarity.

Audience Member: Alright, this is not a hot political question; it’s a hot legal question. My name is Karl, I’m with the Coalition for Court Transparency.

You referenced five areas [where] American judges might do well to consult foreign sources or foreign legal thought. High courts in Canada and the U.K. and many, many other countries have cameras.

I don’t want to know if you support cameras, because I already know where you stand on cameras in the Supreme Court–but there’s a nice lounge at the Supreme Court where Supreme Court bar members are allowed to listen to live audio. Why don’t we allow the live audio to be transmitted outside the building, to everybody else who might not have the money or means to come to Washington, D.C. and wait in line outside in the cold, [so that they can] listen to such audio?

Justice Breyer’s answer to this question begins at the 2:14:08 mark.

Justice Breyer: Now, to give my unsatisfactory answer to [the question] about cameras in the courtroom under the guise of radio, you have to understand that it’s a pretty tough question, and we’re pretty conservative–with a small “c”–when you start talking about our institution. I mean, we don’t know what would happen if we let cameras in the courtroom. And the risks would be–two [risks], and we don’t know what the answer is. Three [risks], actually.

One risk is that people would begin to think that the oral argument–which is about 5% [of what the Supreme Court does], almost all of our material is submitted in writing–they would begin to think that that was what we’re about. The oral argument! That would be misleading, but not deadly.

What might be worse is that people do relate to people. That’s good. You relate more to your family than you relate to your friends, than you relate to people you don’t know, and people you see you relate to more than people you just hear about, and statistics you relate to not at all. OK. That’s the human condition, and I think it’s probably a good one. But the job of an appellate court–and particularly our court, which is about three levels of appellate courts, or two–is to think about how our decision is affecting the 300 million people who aren’t in the courtroom. They’re not there. But they will possibly be affected by our ruling. And people might, well, just look–to the good guy and the bad guy. And that might have an impact on the effectiveness of the Court.

Or, what is the most obvious thing, and you get privately–opposite advice from different members of the press on this one. [Voices perspective of a SCOTUS justice] “It won’t affect us! I mean, we’re grown up, we hope. And there’s the press there anyway, And why will it affect what questions I ask? I have to watch what I say anyway!” Well, apparently, I don’t. But nonetheless, you have to watch it, it’s public and the press is there, so why would this make a difference? To which some members of the press will say, you just wait ’til you see how you react when you ask a question in good faith on A, and then it’s reported on various shows on television and they show a picture of you. You’ll be pretty careful, and maybe you’ll be careful to stop asking. That might be a public benefit, but nonetheless, you see the point. And you say, go see what happens in the Senate or the House, which perhaps has to respond to public opinion.

But the reason you have a court–the reason we decide constitutional questions–if you go back to Alexander Hamilton, is–why? Because this document [takes out pocket copy of Constitution]… it treats exactly the same way the least popular and the most popular person in the United States. That’s what it’s supposed to be. And by the way, he said, we better give the Court the power to review laws–why? Because if we give the President the power to say whatever he does is constitutional or not, he’ll always say it’s constitutional, and he has enough power already.

Why not give the power to Congress? After all, they’re elected, and many countries have done that. To which Alexander Hamilton says–he doesn’t say it in these words–he says, what happens when the decision is right but unpopular? He says, I’ll tell you about Congress–they are experts in popularity. He says, believe me, they know popularity. But what will they do when it’s unpopular? So let’s take these judges nobody’s ever heard of–they don’t have the power of the purse, they don’t have the power of the sword–fabulous. They’re weak. And give them the authority. And when it’s unpopular–unpopular and important, and by the way, possibly wrong–I mean, I’ve participated on both sides of 5-4 decisions. Not as many as you think–there may be 20% [of decisions that] are 5-4, 50% are unanimous–but somebody’s wrong in these cases. Alright, so–and that is the question I get from the President of the Supreme Court of Ghana, a woman who is trying to further democracy and civil, human rights in Ghana, and from Ouagadougou [in Burkina Faso], and from countries all over–why do people do what you say?

That’s a pretty good question. And it’s taken us–I say, there’s no answer in this document [the Constitution], and Hamilton didn’t answer it, either. He didn’t know. Nobody knew. It’s two hundred years of history. You want people in your country to follow courts and the rule of law–go out to the villages. Don’t just talk to the lawyers. Don’t just talk to the judges. By the way, there are in our country–contrary to popular belief–309 of the 310 million are not lawyers. Alright? And I say, they’re the ones that had to support sending the troops to Little Rock to enforce integration. They’re the ones that have to decide they will follow decisions that they think are really wrong and really unpopular. And that takes time. But that’s part of our job. And who knows? So I say we’re conservative with a small “c.”

And the radio? I mean, the radio–[unintelligible] they tried that in the D.C. Circuit [which has since September 2013 provided same-day audio for its oral arguments], didn’t hurt anything. Could we experiment with that? Maybe. But that’s not right in front of us. So therefore, that’s [my] not answering [the question].

—–

As mentioned in the beginning of this post, most of Justice Breyer’s answer, which focuses on insulating the Court from the misconceptions of the public, retreads his previous statements about cameras in the courtroom. In March 2013, in response to questioning from a House Appropriations subcommittee, Breyer mentioned the Court’s conservatism with a small “c” on the issue, the potential distortion by the press, and the self-censoring effects televised arguments could have on the justices’ questioning. He said then: “I’m not ready yet. I mean, I want to see a little bit more of how all this works in practice. I’d give people the power to experiment. I’d try to get studies–not paid for by the press–of how this is working in California, of how it affects public attitudes about the law. I’d like some real objective studies–I know that’s a bore, but that’s where I am at the moment.”

In January 2014, Justice Breyer told an audience at The Washington Center for Internships and Academic Seminars that he suspects it is a matter of when, not if, oral arguments are televised, but worried about the “demonizing and angelizing” of certain members of the Court.

What made yesterday’s answer different (and encouraging for advocates of live streaming) was his begrudging acknowledgment at the end that the D.C. Circuit has adapted its procedures to make oral arguments more accessible to the public, with no harm done to the integrity or the perception of the court. I would not go so far as to call it Breyer’s endorsement of live audio–as Michelle Olsen pointed out, the D.C. Circuit still doesn’t have live audio, only same-day audio, and it’s unclear which of these two practices Justice Breyer’s musings on “experiments” referred to. Given that the Supreme Court currently releases its argument recordings just once a week on Fridays, though, even moving toward same-day audio at One First Street would be a small step in the right direction.

Noah Newkirk of Los Angeles made national headlines yesterday when he interrupted an oral argument in the Supreme Court with a protest over the Court’s 2010 decision in Citizens United v. Federal Election Commission. Newkirk, who had been admitted into the courtroom as a spectator, stood up and made his statement toward the end of arguments for Octane Health LLC v. Icon Health and Fitness, Inc.–a case that involved patent attorneys’ fees, not campaign finance–before being promptly removed by security. Because cameras are not permitted in the courtroom and the Supreme Court does not broadcast its oral arguments live, initialmediaaccounts of the disruption either summarized or quoted only snippets of what Newkirk reportedly said, while the court’s official transcript of the Octane oral argument left out the protest entirely.

Thanks to new video released by a YouTube user named “SCOTUSpwned,” however, we can now see footage of Newkirk’s protest in full, which was clandestinely recorded (and captioned) by an anonymous person sitting in the spectators’ section with Newkirk yesterday. In addition, SCOTUSpwned also posted five other secretly-made videos from two different Supreme Court oral arguments from this term, ranging from four seconds to half an hour in length. I’ve watched all of them and identified the relevant oral arguments where I can, which I describe below. We begin with the first video that SCOTUSpwned uploaded:

Video 1 (MOVI0000) – Timestamped 10/08/13

Burt v. Titlow (argued 10/08/2013): 16 minutes into the video, you hear one of the attorneys, John J. Bursch, say, “[Y]ou can see how that difference played out in this very case because the Sixth Circuit didn’t look at all the other evidence …,” which matches page 55 of the transcript of the Titlow oral argument.

Video 2 (SUNP0000) – Timestamped 1/25/08

It is inconclusive where this was taken, since the video only lasts 4 seconds. Based on the timestamp, however, I believe this was recorded during the same session, by the same person, as Video 4 (which was of the Burt v. Titlow oral argument; see below).

Video 3 (MOVI0036) – Timestamped 1/1/2008

Octane Fitness v. Icon Health & Fitness (argued 2/26/2014): 34 seconds into the video, you can hear attorney Carter G. Phillips say, “And then when Congress, in 1952, incorporates the exceptional case standard…” which matches the argument on p. 32 of the transcript.

Video 4 (SUNP0001) – Timestamped 1/25/2008

Burt v. Titlow (argued 10/08/2013): Around 38 seconds into the video, Valerie Newman says, “It appears from the record that he got his information from the media. This was a highly, highly publicized case,” which corresponds with p. 50 of the transcript.

Video 5 (SUNP0019) – Timestamped 6/14/2008

Octane Fitness v. Icon Health and Fitness (argued 2/26/2014): 50 seconds in, Roman Martinez says, “Here Congress did not say otherwise. Congress did not embrace a clear and convincing standard,” which matches the dialogue on p. 26-27 of the transcript.

Burt v. Titlow (argued 10/08/2013), Octane Fitness v. Icon Health and Fitness (argued 2/26/2014): This video contains footage from two separate oral arguments. The first 1:10 is from Titlow–although it is mislabeled in the video as “the oral arguments… for the case McCutcheon v. FEC” (which was argued the same day as Titlow, but is not the same case). At the 50-second mark, we can hear Valerie Newman, Titlow’s attorney, say “She had already pled, so she had already entered a plea, and all that was left was sentencing,” which matches p. 50 of the argument transcript. The last half of the video is from yesterday’s Octane Fitness v. Icon Health argument and includes Noah Newkirk (captioned as “Kai” in the video) asking the justices to overrule Citizens United. Newkirk waits until Carter G. Phillips says, “If there are no other questions, your honors, I’d urge you to affirm” (p. 48 of the Octaneargument transcript) before standing up and protesting. The video then shows him being removed from the courtroom. The anti-corruption grassroots group 99rise, of which Newkirk is a co-founder, took responsibility for the protest and issued a press release that included the full speech Newkirk made in court.

[UPDATE: The original version of this post misidentified the first minute and ten seconds of the video as coming from the McCutcheon v. FEC oral argument, in part due to the caption of the videographer and in part due to the fuzziness of the audio–I believed the female voice I heard was Erin Murphy, a lawyer for the McCutcheon appellants. Upon further audio analysis, however, I realized that the words the female attorney was saying matched up not with the McCutcheon argument transcript but the Burt v. Titlow transcript, and that the voice was Valerie Newman’s rather than Murphy’s. None of the six videos on SCOTUSpwned’s YouTube page are from McCutcheon v. FEC. I regret the error.]

As far as I can tell, these are the first videos of the Court in session to go public, sparking online discussion about the identity of the cameraman, the method they used in compiling this footage (what did they use to film the Court, and how did they get it past security?), and whether this incident might ultimately push the Supreme Court toward or away from allowing live broadcasts of its proceedings.

I’m also wondering whether we can expect a “sequel” from 99rise anytime soon. It appears from the differing timestamps and varying audio quality on some of the videos that multiple people managed to sneak devices in and film the Court (Video 1, for instance, bears the correct date for the oral argument in Burt v. Titlow but makes it difficult to hear the words of the attorneys because it captures mostly the breathing of the cameraman, whereas Video 4 of the same oral argument has an incorrect timestamp but much cleaner audio), but to date, only Noah Newkirk has been thrown out for causing a disturbance. It is unclear whether any other collaborators were caught recording the arguments during yesterday’s scuffles. Since the group obviously cares a great deal about the Court’s campaign finance jurisprudence and made a point to be physically present on the day of the McCutcheon argument (Burt v. Titlow, after all, was argued on the same day as McCutcheon), I’m guessing that they were at the Court yesterday because they believed that the justices were going to issue a ruling in McCutcheon. That didn’t turn out to be the case, but what will they have planned when the Court actually does, and how does Court staff plan to tighten security before that day comes?

McCullen v. Coakley has received a good deal of attention in the press already because of its contentious subject matter: anti-abortion activists are challenging a 2007 Massachusetts statute that created 35-feet “buffer zones” around the entrances, exits and driveways of all reproductive health care facilities in the state, arguing that the law infringes upon their First Amendment rights to share their views in a public forum. Due to personnel changes, there is a very good chance that the Supreme Court will end up overturning its own thirteen-year-old precedent in order to invalidate the Massachusetts law. But just in case you needed another reason to follow the oral arguments for McCullen v. Coakley tomorrow, here’s one more: even though the case has zero bearing on the constitutionality of abortion, Justice Scalia is going to give us some choice quotes railing against Roe v. Wade and the Court’s abortion jurisprudence.

Why do I think this? Just look at Justice Scalia’s dissent in Hill v. Colorado, the 2000 case that the anti-abortion activists in Massachusetts are asking the Supreme Court to overrule. In Hill, six justices (Chief Justice William Rehnquist and Justices Stevens, O’Connor, Breyer, Souter and Ginsburg) voted to uphold a Colorado law that was similar but arguably posed even less of a First Amendment problem than the Massachusetts law now in question: Colorado’s statute created a buffer zone of only eight feet, and it applied to all health care facilities. Writing for the majority, Justice John Paul Stevens balanced anti-abortion protestors’ right to free speech against the “recognizable” privacy interests of the “unwilling listener” and came out in favor of the latter. Stevens reached back into a 1928 Court opinion by Justice Brandeis for “the right to be let alone” from unwelcome speech and ran with it, concluding that Colorado’s interests in protecting patients and staff members from impeded access to the facilities and the content-neutral way in which the law was written satisfied the First Amendment.

Justice Scalia was livid. His dissent, which Justice Thomas joined (but not Justice Kennedy, who wrote his own separate dissent, for reasons that are obvious once you read the two), is vintage Scalia in its mix of anger, indignation and sarcasm. In my view, he quite effectively calls out Justice Stevens’ shaky reasoning regarding the unwilling audience, pointing out that what Justice Brandeis actually meant was the “right to be let alone” by the government, not the right to be free from hearing other private speakers communicating their message in a public setting. Being Scalia, however, he doesn’t stop there. The First Amendment is not the only thing at stake. Justice Scalia wants you to know that the Hill decision is just one in a long line of animus-driven, unconstitutional attacks on the rights of the unborn and those who would save them, so he takes the opportunity to excoriate the Court’s “relentlessly pro-abortion jurisprudence:”

What is before us, after all, is a speech regulation directed against the opponents of abortion, and it therefore enjoys the benefit of the ‘ad hoc nullification machine’ that the Court has set in motion to push aside whatever doctrines of constitutional law stand in the way of that highly favored practice [citation omitted]. Having deprived abortion opponents of the political right to persuade the electorate that abortion should be restricted by law, the Court today continues and expands its assault upon their individual right to persuade women contemplating abortion that what they are doing is wrong.

The emphasis is mine.

The public forum involved here–the public spaces outside of health care facilities–has become, by necessity and by virtue of this Court’s decisions, a forum of last resort for those who oppose abortion. The possibility of limiting abortion by legislative means–even abortion of a live-and-kicking child that is almost entirely out of the womb–has been rendered impossible by our decisions from Roe v. Wade… For those who share an abiding moral or religious conviction (or, for that matter, simply a biological appreciation) that abortion is the taking of a human life, there is no option but to persuade women, one by one, not to make that choice. And as a general matter, the most effective place, if not the only place, where that persuasion can occur, is outside the entrances to abortion facilities.

And in the final paragraph:

Does the deck seem stacked? You bet. As I have suggested throughout this opinion, today’s decision is not an isolated distortion of our traditional constitutional principles, but is one of many aggressively proabortion novelties announced by the Court in recent years.

Look for more of these quotable “suggestions” from Justice Scalia tomorrow, the incidence of which is only made more likely by the fact that this time around, with Chief Justice Roberts and Justice Alito on the bench, he will likely have enough votes to jettison Hill once and for all.Justice Kennedy may well end up writing a final opinion in McCullen that is based on his own Hill dissent–a much more temperate disagreement that skipped the “proabortion” talk and stayed focused on the First Amendment–but Scalia will doubtless take this opportunity to run a victory lap.

The Supreme Court pushed the “pause” button on gay marriage in Utah yesterday, preventing any new marriages between same-sex couples from taking place until the case has been decided on appeal by the Tenth Circuit. Let’s take a second to unpack the justices’ order:

OK, so there’s not a whole lot to unpack here. The grant indicates that Justice Sonia Sotomayor, the Circuit Justice in charge of handling stay applications arising from the Tenth Circuit, referred Utah’s request to the full court instead of deciding it herself. This was an expected outcome–as mentioned in my previous post explaining the stay application process, full-court consideration is the most efficient way to dispose of the request and prevent any “appeals” or resubmissions that could happen when an individual Circuit Justice rules on a stay. That the Supreme Court granted the stay was also not surprising. As Rick Hasen notes here, it was very likely that the Court (including even the justices who would support expanding same-sex marriage rights1 ) would want to slow things down on such an important, far-reaching constitutional question.

So what does the grant yesterday tell us about how the Court may rule on the merits in Herbert v. Kitchen, when it is inevitably appealed from the Tenth Circuit? The answer is: very little. We do know that the Court will likely choose to hear the case–based on the requirements for successfully obtaining a stay (also detailed in the flowchart from my previous post), the Court would not have granted Utah its stay unless it thought there was a “reasonable probability” that four justices would grant certiorari when the case eventually winds its way up. We also know from the grant requirements that the full court thought there was a “fair prospect” that five justices might eventually overturn federal district Judge Robert Shelby’s ruling on the Utah same-sex marriage ban, probably because of his game-changing conclusion that same-sex marriage is a fundamental constitutional right–an issue that the Supreme Court itself assiduously avoided addressing in last year’s DOMA and Proposition 8 litigation.

Beyond these questions of probability, however, the grant itself contained no reasoning for the Justices’ decision and addressed none of the substantive arguments brought up by Utah and the same-sex couple plaintiffs, so it is hard to divine how they will rule on the merits. The criteria for granting a stay are different from the standards used for ruling on the substantive questions. The fact that it chose to hit the brakes on same-sex marriage in Utah now does not necessarily mean that the Court will strike down Judge Shelby’s ruling.

A more pressing question created by yesterday’s grant is what happens now to the 1,360 same-sex couples who received marriage licenses from the state–a majority of whom have already used the licenses to get legally married in the seventeen days before the Supreme Court halted the process. Interim Utah Attorney General Sean Reyes said in a press conference yesterday afternoon that he “doesn’t know.” These couples are in “legal limbo,” “uncharted territory.”

My personal feeling is that yesterday’s stay should not erase or invalidate the hundreds of same-sex marriages that were legally carried out in Utah in the period between Judge Shelby’s initial December 20 ruling and the Supreme Court order. Up until yesterday, while Utah’s stay request was slowly moving its way up the federal courts, Judge Shelby’s decision striking down Amendment 3 was still controlling in the state, so these marriages did not take place in violation of any court order or state ban. A trickier question is what happens to the couples who obtained marriage licenses legally during those seventeen days but had not actually gotten married by the time that the Supreme Court issued the stay. We should fully expect further “offshoot” litigation on this matter.

Finally, it’s worth noting that Utah is still weighing proposals to bring in outside counsel to help with Kitchen, which will be scheduled for argument before the Tenth Circuit this spring. Outside help would probably be a wise idea, given the state’s well-documented bungling in the last few weeks. That Utah dropped the ball repeatedly on moving its stay application along–first by neglecting to ask Judge Shelby at the litigation stage for a stay of any possible ruling in favor of the same-sex couples, then by running to the Tenth Circuit for an emergency stay before Judge Shelby had even ruled on its request, then by waiting a full week to appeal the Tenth Circuit stay denial to Justice Sotomayor–is the reason why the state is now dealing with such a large number of marriages that may or may not be legal.

For an example of a Supreme Court justice advocating for an incremental approach to the recognition of a constitutional right, look no further than Justice Ruth Bader Ginsburg’s comments on Roe v. Wade. She has repeatedly said that abortion rights should have been settled state-by-state rather than in one fell swoop, which in her opinion had the effect of polarizing the national discussion. A similar argument regarding strategy has played out amongst same-sex marriage proponents. [↩]

Justice Sonia Sotomayor of the Supreme Court is set to decide whether same-sex marriages in Utah, which have been conducted since a federal trial judge overturned on December 20 a state ban on such marriages, can continue while the case is being appealed, or whether they must cease for the time being.

After both Judge Robert Shelby and the Tenth Circuit Court of Appeals denied its application for an emergency stay, Utah took its request up to the Circuit Justice assigned to the Tenth Circuit, Justice Sonia Sotomayor, on December 31. Justice Sotomayor asked the plaintiffs to submit its response opposing the stay by noon, January 3. Their brief can be found here (courtesy of the Legal Times).

From here, Justice Sotomayor can choose to decide the stay herself, or she can refer the issue to the full Supreme Court. I’ve created a flowchart (click to enlarge) to help explain how a non-capital stay1 moves through the federal courts. The magenta box on the left lists out what a party must show in order to obtain a stay.

In terms of where in the process we are right now, Utah’s stay application is at the teal box labeled “Circuit Justice (Justice Sotomayor).”

There has been a lot of speculation in the last few days over whether Justice Sotomayor will keep the stay application for herself or bring in the rest of her colleagues, with many predicting that she will refer it to the full Court. As the chart shows, that seems to be the quickest, most efficient way to dispose of the application–once the full Court has voted on the stay, its decision is final.

Individual Circuit Justice rulings, meanwhile, are theoretically subject to “appeal.” If the Circuit Justice denies the stay, the party petitioning for a stay can resubmit the request to another individual Justice of its choosing (Supreme Court Rule 22.4, however, points out that this tactic is “not favored,” and the Justice to whom the request is resubmitted will usually then refer it to the full court, out of deference to the Circuit Justice and to defuse attempts at “justice shopping”). If the Circuit Justice individually grants the application, the party opposing the stay can then ask the full court to vacate the stay. Now, in practice, the Circuit Justices are accorded a great deal of deference in their individual decisions–Sotomayor, after all, did just individually grant a stay on a separate case two days ago–but the possibility that their rulings might end up being reviewed by the full Court anyway may incentivize them to “share.”

UPDATE: The Supreme Court granted Utah’s request for a stay this morning, halting same-sex marriages in the state until the Tenth Circuit has decided the case on appeal. The one-paragraph order, which can be found here, shows that Justice Sotomayor did in fact refer the stay request to the full court. The Supreme Court did not touch the merits of the case in its grant of the stay, providing no explanation of its decision or analysis of the two parties’ arguments. As Utah’s Fox 13 News reporter Ben Winslow notes, over 900 same-sex marriages have been conducted in the state since Judge Shelby’s initial ruling on December 20. Winslow reports that the Tenth Circuit expects to hear oral argument in the case this March.

As opposed to capital stays, where a convicted individual has received the death penalty–these play out differently because of the nature of such cases [↩]

Nearly three weeks after Democrats triggered the “nuclear option” and altered filibuster rules to make it easier for sitting presidents to appoint federal judicial nominees, the Senate is set to vote on Patricia Ann Millett’s nomination to the United States Court of Appeals for the District of Columbia Circuit at 10 a.m. on Tuesday morning.

President Obama originally nominated Millett, who has argued 32 cases before the Supreme Court and currently co-heads the Supreme Court and national appellate practices at the Washington, D.C. law firm Akin Gump Strauss Hauer & Feld LLP, to a seat on the D.C. Circuit in June 2013. Senate Republicans deemed Millett too partisan and filibustered her nomination in October, which blocked her from receiving a confirmation vote before the full Senate.

Under the previous rule, Senate Democrats would have needed a sixty-person supermajority to overcome the minority party’s filibuster and force a confirmation vote—a number that they fell short of, with Republicans holding forty-five out of 100 seats. After the Republicans used the same tactic this fall to block two more D.C. Circuit nominees, however—Georgetown law professor Cornelia “Nina” Pillard and United States District Court Judge Robert Leon Wilkins—Democrats changed the rule outright so that only a simple majority would be required to obtain a confirmation vote. With the math on the Democrats’ side now, Millett is expected to be confirmed today. No date has been set yet for voting on Pillard and Wilkins.

The D.C. Circuit is widely referred to as the second most important court in the country after the Supreme Court, as it hears a disproportionate number of high-profile, high-impact regulatory and administrative cases compared to the other twelve federal circuit courts. In a paper published by the Cornell Journal of Law and Public Policy last week, four former D.C. Circuit law clerks examined the jurisdiction of the court and further noted that Congress often “carve[s] out certain areas of federal law as the special preserve of the D.C. Circuit,” which, when combined with the Supreme Court’s tendency to review only a small number of cases each term, effectively gives the D.C. Circuit “the final say—and the only appellate say—over numerous laws and rules affecting the entire nation.” The article’s authors found 150 statutory provisions in the United States Code that referred specifically to the D.C. Circuit, as opposed to eighty-eight mentions for the rest of the circuit courts combined.

In addition, the Circuit has become a stepping stone of sorts for judges aspiring to the highest bench of all: four out of the nine sitting Supreme Court justices have previously served on the D.C. Circuit.1

Of the eleven seats on the D.C. Circuit, four are currently filled by Republican-appointed judges and four by Democratic appointees, while three seats remain vacant. Because of this numerical tie, any changes that President Obama makes to its membership is seen as tipping the court’s balance toward his side of the political spectrum. Senate Republicans have tried to pre-empt this by proposing legislation earlier this year that would have eliminated the three vacancies on the circuit entirely, arguing that the court does not need eleven judges because it faces a lower caseload than it has in past years (and accusing Obama of “packing” the court by filling the empty seats). Given last month’s changes to the filibuster rule, however, this bill is likely to become moot as Democrats now push forward with confirming the President’s nominees.

The vote on Patricia Millett was originally scheduled for Monday evening but was postponed after bad weather in D.C. delayed the travel plans of some Senators.